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JUDGE ADVO'CATK GENERAL 



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PROCEEDINGS, riNBHCS, AND SENTENCE OP A GENERAL COURT. MARTIAL 'H^ 



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UNITED STATES^ VOLUNTEERS. 



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WASHINGTON: 

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JUDGE ADVOCATE GENERAL 



PROCEEDINGS, FINDINGS, AND SENTENCE Of A GENERAL COURT MARTIAL 



HELD IN THE CITY OF WASHINGTON, 



FOR THE TRIAL OF 



aJ0r §tmxn\ Jfit^ |0|ii IPorter, 



UNITED STATES YOLUNTEERS. 



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WASHINGTON : 
1863. 



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KECOBD OF THE COURT MARTIAL. 



CHARGES AND SPECIFICATIONS. 

Charges and Specifications exhibited against Major General Fitz John Porter, 
of the Volunteers of the United States Army, by B. S. Roberts, Brigadier General 
of United States Volunteers, and Inspector General of Major General Pope's 
Army of Virginia. 

Charge First — Violation of the Ninth Article of War. 

Specification First— In this, that the said Major General Fitz John Porter, of 
the volunteers of the United States, having received a lawful order, on or about 
the 27th of August, 1862, while at or near Warrenton Junction, in Virginia, 
from Major General John Pope, his superior and commanding ofiicer, in the 
following figures and letters, to wit : 

Headquarters Army of Virginia, 
Bristow Station, Aug. 27, 1862, 6.30 p. m. 
Major General F. J. Porter, Warrenton Junction — 

General: The Major General Commanding directs that you start at one 
o'clock to night, and come forward with your whole corps, or such part of it as 
is with you, so as to be here by daylight to-morrow morning. Hooker has had 
a very severe action with the enemy, with a loss of about three hundred killed 
and wounded. The enemy has been driven back, but is retiring along the rail- 
road. We must drive him from Manassas, and clear the country between that 
place and Gainesville, where General McDowell is. If Morrell has not joined 
you, send word to him to push forward immediately ; also send word to Banks 
to hurry forward with all speed, to take your place at Warrenton Junction. 
It is necessary, on all accounts, that you should be here by daylight. I send 
an ofiicer with this dispatch who will conduct you to this place. Be sure to 
send word to Banks, who is on the road from Fayetteville, probably in the 
direction of Bealton. Say to Banks, also, that he had best run back the raiK 
road trains to this side of Cedar Run. If he is not with you, write him to 
that effect. 

By command of Major General Pope. 

(Signed) George D. Ruggles, Colonel and Chief of Staff. 

P. S. — If Banks is not at Warrenton Juiietion, leave a regiment of infantry 
and two pieces of artillery, as a guard till he comes up, with instructions to 
follow you immediately. If Banks is not at the Junction, instruct Colonel 
Cleary to run the trains back to this side of Cedar Run, and post a regiment 
and section of artillery with it. 

By command of Major General Pope. 

(Signed) Geo. D. Ruggles, Colonel and Chief of Staff. 

— did then and there disobey the said order, being at the time in the face of th& 



#4 



enemy. This at or near "Warreuton, in the State of Virginia, on or about the 
28th of August, 1862. 

Specification Second — In this, that the said Major General Fitz John Porter, 
being in front of the enemy, at Manassas, Virginia, on or about the morning of 
August 29th, 1862, did receive from Major General John Pope, his superior 
aud commanding officer, a lawful order, in the following letters and figures, 
to wit : 

Headquarters Army of Virgtxia, 

Centreville, August 29, 1862. 

Generals McDowell akd Porter: Yon will please move forward, with 
your joint command, towards Gainesville. I sent General Porter written ordei'S 
to that effect, an hour and a half ago. Heintzleman, Sigel. and Reno, are 
moving on the Warrenton turnpike, and must now be not far from Gainesville. 
I desire that, as soon as communication is established between this force and 
your own, the whole command shall halt. It may be necessary to fall back 
behind Bull Run, at Ceutreville, to-night. I presume it will be so on account 
of our supplies. I have sent no orders of any description to Ricketts, and 
none to interfere, in any way, with the movemf nts of General McDowell's 
troops, except what I sent by his aid de-camp last night, which were to hold his 
position on the Warrenton pike, until the troops from here should fall on the 
enemy's flank and rear. I do not even know Ricketts' position, as I have not 
been able to find out where General McDowell was, until a late hour this 
morning. General McDowell will take immediate steps to communicate with 
General Ricketts, and instruct him to join the other division of his corps as 
soon as practicable. If any considerable advantages are to be gained by 
departing from this order, it will not be strictly carried out. One ihing must 
be held in view — that the troops must occujjy a position from which they can 
i-each Bull Run to-night or by morning. The indications ai-e that the whole 
force of the enemy is moving in this direction, at a pace that will bring them 
here by to-morrow night or the next day. 

My own headquarters will, for the present, be with Heintzelman's corps, or 
at this place. 

(Signed) John Pope, 

Major General Commanding. 

— which order the said Major General Porter did then and there disobey. This 
at or near Manassas, in the State of Virginia, on or about the 29th August, 1802. 

Specification Third. — In this: that the said Major General Fitz John Porter, 
having been in front of the enemy during the battle of Manassas, on Friday, the 
29th of August, 18G2, did on that day, receive from Major General John Pope, 
his superior and commanding officer, a lawful order, in the following letters and 
figures, to wit : 

Headquarters in the Field, 

August 29th, 1862, 4.30 p. m. 

Major General Porter: Your line of march brings you on the enemy's 
right flank. I desire you to push forward into action at once on the enemy's 
flank, and, if possible, on his rear, keeping your right in communication with 



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General Reynolds. The enemy is massed in the woods in front of us, but can be 
shelled out as soon as you engage their flank. Keep heavy reserves and use 
your batteries — keeping well closed to your right all the time. In case you are 
obliged to fall back, do so to your right and rear, so as to keep you in close com- 
munication with the right wing. 

(Signed) John Pope, 

Major General Commanding. 
— which said order the said Major General Porter did then and there disobey, 
nnd did fail to push forward his forces into action, either on the enemy's flank 
or rear, and iu all other respects did fail to obey said order. This at or near 
Manassas, in the State of Virginia, on or about the 29th of August, 1862. 

Specification Fourth — In that the said Major General Fitz John Porter, 
being at or near Manassas Junction, on the night of the 29th of August, 1862, 
did receive from Major General John Pope, his superior and commanding 
officer, a lawful order, iu figures and words as follows, to wit: 

Headquarters Army of Virginia, 
In the Field near Bull Run, August 20, 1862, 8.50 P. M. 
Major General F. J. Porter — 

General : Immediately upon receipt of this order, the precise hour of receiving 
which you will acknowledge, you will march your command to the field of battle 
of to-day, and report to me in person for orders. You are to understand that 
you are expected to comply strictly with this order, and to be present on the 
field within three hours after its reception, or after daybreak to-morrow morning. 
(Signed) John Pope, 

Major General Commanding. 
And the said Major General Fitz John Porter did then and there disobey the 
said order, and did permit one of the brigades of his command to march to 
Centreville, out of the way of the field of battle, and there to rem.ain during 
the entire day of Saturday, the 30th of August. This at or near Manassas 
Station, in the State of Virginia, on the 29th and 30th daj's of August, 1862. 

SpeciScation Fifth — In this : that the said Major General Fitz John Porter, 
being at or near Manassas Station, in the State of Virginia, on the night »f the 
29th August, 1862, and having received from his superior commanding officer, 
Majcr General John Pope, the lawful order set forih in specification fourth to 
this charge, did then and there disobey the same, and did permit one other brigade 
attached to his command, being the brigade commanded by Brigadier General 
A. L. Piatt, to march to Centreville, and did thereby greatly delay the arrival of 
the said General Piatt's brigade on the field of battle of Manassas on Saturday, 
the oOih of August, 1862. This at or near Manassas, in the State of Virginia, 
on or abbut the 29th of August, 18G2. 

(Signed) B. S. Roberts, 

Brigadier General Volunteers, and Inspector General Pope's Army. 

Charge Second — Violation of the Fifty-second Article of War. 

Specification First — In this, that the said Major General Fitz John Porter, 
during the battle of Manassas, on Friday, the 29th of August, 1862, and while 



witliia sight of the field, and in full hearing of its artillery, did receive from 
Major General John Pope, his superior and commauding officer, a lawful order 
to attack the enemy, in the following figures and letters, to wit : 

Headquarters in the Field, 

August 29th, 1862—4.30 p. m. 
Major General Porter : Your line of march brings you in on the enemy's 
right flank. I desire you to push forward into action at once on the enemy's 
flank, and, if possible, on his rear, keeping your right in communication with 
Gen. Reynolds. 

The enemy is massed in the woods in front of us, but can be shelled out as 
soon as j-ou engage their flank. Keep heavy reserves, and use your batteries, 
keeping well closed to your right all the time. In case you are obliged to fall 
back, do so to your right and rear, so as to keep jou in close communication 
with the right wing. 

(Signed) John Pope, 

Major General Commanding. 

Which said order the said Major General Porter did then and there shameful- 
ly disobey, and did retreat from advancing forces of the enemy, without any at- 
tempt to engage them, or to aid the troops who were already fighting greatly 
superior numbers, and were relying on the flank attack he was thus ordered to 
make to secure a decisive victory and to captui-e the enemy's army — a result 
which must have followed from said flank attack had it been made by the said 
General Porter in compliance with said order, which he so shamefully disobeyed. 
This at or near Manassas, in the State of Virginia, on or about the 29th of Au- 
gust, 1862. 

Specification Second — In this, that the said Major General Fitz John Porter, 
being with his army corps on Friday, the 29th of August, 1862, between Ma- 
nassas Station and the field of a battle, then pending between the forces of the 
United States and those of the rebels, and within sound of the guns, and in the 
presence of the enemy, and knowing that a severe action of great consequence 
was being fought, and that the aid of his corps was greatly needed, did fail all 
day to bring it ou the field, and did shamefully fall back and retreat from the 
advance of the enemy without any attempt to give them battle, and without 
knowing the forces from which he shamefully reti'eated. This, near Manassas 
Stsition, in the State of Virginia, on the 29th of August, 1862. 

Specification Third — In this, that the said Major General Fitz John Porter, 
being with his arixiy corps near the field of battle of Manassas, on the 29th of 
August, 1862, while a severe action was being fought by the troops of Major 
General Pope's command, and being in the belief that the troops of the said 
General Pope were sustaining defeat and retiring from the field, did shamefully 
fail to go to the aid of the said troops and General, and did shamefully retreat 
away and fall back with his army to the Manassas Junction, and leave to the 
disasters of a presumed defeat the said army, and did fail, by any attempt to 
attack the enemy, to aid in averting the misfortunes of a disaster that would 
have endangered the safiety of the capital of the country. This at or near Ma- 
nassas Station, in the State of Virginia, on the 29th day of August, 18G2. 



Specification Fourth — In this, that the said Major General Fitz John Porter, 

on the' field of battle of Manassas, on Saturday, the 30th August, 1862, having 
received a lawful order from his superior officer and commanding general, Major 
General John Pope, to engage the enemy's lines and to carry a position near 
their center, and to take an annoying battery there posted, did proceed in the 
execution of that order with unnecessary slowness, and, by delays, give the enemy 
opportunities to watch and know his movements, and to prepare to meet his at- 
tack, and did finally so feebly fall upon the enemy's lines as to make little or no 
impression on the same, and did fall back and draw away his forces unnecessa- 
rily and without making any of the great personal efforts to rally his troops or to 
keep their lines, or to inspire his troops to meet the sacrifices and to make the 
resistance demanded by the importance of his position and the momentous con- 
sequences and disasters of a retreat at so critical a juncture of the day. 
(Signed) B. S. Roberts, 

Brigadier General Volunteers and Inspector General Pope's Army. 

To all of which charges and specifications — except to fourth specification of 
second charge, which was withdrawn — the accused entered the plea of " not 
guilty." 



FINDINGS AND SENTENCE OF THE COURT. 

The court was thereupon cleared for deliberation, and having maturely con- 
sidered the evidence adduced, find the accused Major General Fitz John Porter, 
of United States Volunteers, as follows : 

Of the first specification of first charge, guilty ; 

Of the second specification of first charge, guilty ; 

Of the third specification of first charge, guilty ; 

Of the fourth specification of first charge, not guilty ; 

Of the fifth specification of first charge, not guilty ; 

Of the first charge, guilty ; 

Of the first specification of second charge, guilty, except so much of the 
specification as implies that he, the accused, *' did retreat from advancing forces 
of the enemy " after the receipt of the order set forth in said specification ; 

Of the second specification of second charge, guilty ; 

Of the third specification of second charge, guilty, except the words " to the 
Manassas Junction ;" 

Of the second charge, guilty. 

And the Court do therefore sentence him, Major General Fitz John Porter, of 
the United States Volunteers, to be cashiered and to be forever disqualified from 
holding any office of trust or profit under the Government of the United States. 

D. HuxTER, Major General, 

President. 

J. Holt, Judge Advocate. 



THE APPROVAL BY THE PRESIDENT. 

The record of the proceedings having been transmitted by Major General Hal- 
leck to the Secretary of War, and by him, under the 65th article of war, laid 



8 

before the President on tlie 12th inst., he, on the 21st inst., confirmed the same 
by an endorsement thereon in the following words : 

The foregoing proceedings, findings, and sentence in the foregoing case of 
Major General Fitz John Porter, are approved and confirmed, and it is ordered 
that the said Fitz John Porter be, and he is hereby cashiered and dismissed from 
the service of the United States as a major general of volunteers, and as colonel 
and brevet brigadier general in the regular service of the United States, and 
forever disqualified from holding any office of trust or profit under the Govern- 
ment of the United States. 

Abraham Lincoln. 

January 21, 1863. 



REVIEW OF THE JUDGE ADVOCATE. 



Judge Advocate General's Office, 
January 19, 1863. 

Sir: In compliance with your written instructions, under date of the 13th 
instant, "to revise the proceedings of the court martial in the case of Major- 
General Fitz John Porter, and to report fully upon any legal questions that 
may have arisen in them, and upon the bearing of the testimony in reference to 
the charges and specifications exhibited against the accused, and upon which he 
was tried," I have the honor to submit the following report : 

As the animus of the accused towards his commanding general, in pursuing 
the line of conduct alleged against him, must largely affect the question of his 
criminality, and may furnish a safe and reliable light for your guidance in de- 
termining points otherwise left doubtful by the evidence, it is proper that it 
should, if possible, be ascertained before entering at large upon the review of 
the case, which you have instructed me to make. 

General Porter, with his command, belonged to the army of the Potomac, 
which had closed its disastrous campaign on the peninsula just before the mo- 
ment at which the narrative of the events set forth in the record before you, is 
taken up by the witnesses who have deposed. General McClellan and Assistant 
Secretary of War Tucker state that he displayed great energy and zeal in de- 
barking his troops and hastening their departure for Aquia Creek. The former, 
however, adds that it was not then known to the accused that he was to be 
placed under the immediate command of General Pope, the question of the 
command not having at that time been decided. It should likewise be borne 
in mind that the transfer of the army of the Potomac, once begun, was a move- 
ment of extreme peril, and that extraordinary efforts on the part of all engaged 
in it were prompted, not only by those high considerations of patriotism which 
must be supposed to have been present, but also by the equally urgent instincts 
of self-preservation. The order of General Halleck, directing the junction of tbe 
command of the accused with that of General Pope, seems to have reached 
him at Aquia Creek. From this he proceeded, in obedience to the order, to effect 
the junction, and at that time, as we learn from General Burnside, he lacked 
confidence in General Pope, and shared the distrust, alleged by the witness to 
have been entertained by many officers, of his capacity to conduct the campaign 
in which the army of Virginia was then engaged. He reported to General Pope 



10 

by note on tte 26th, and in person on the morning of the 27th of August, 1862, 
at Warreuton Junction. In the brief conference which ensued between them in 
the forenoon of that day, he must have acquired all the information he then poa- 
sessed as to the plan of the campaign, and as to the disposition of the forces of the 
contending armies. After this conference, at 4 o'clock p. m. of that day, he 
sent to General Burnside the dispatch first referred to in the testimony. In 
that dispatch, interspersed amid various items of military intelligence, are found 
the following expressions : 

"We are working now to get behind Bull Run, and I jJresume will be there in 
a few days, if strategy don't use us up. The strategy is magnificent and tactics 
in the inverse proportion." "I was informed to-day, by the best authority, that 
in opposition to General Pope's views, this army was pushed out to save the 
army of the Potomac — an army that could take care of itself." '' Most of this is 
private, but if you can get me away, do so." In another dispatch to the same 
officer on 27th August, he says : " Please hasten back the wagons I sent down, and 
inform McClellan, that I may know that I am doing right." Again, at 2 p. m, of 
the 28th, he dispatches "all that talk about bagging Jackson, &c., was bosh." 
" That enormous gap, Manassas, was left open, and the enemy jumped through, 
and the story of McDowell having cut off Longstreet, had no good foundation." 
" The enemy destroyed an immense amount of property at Manassas — cars and 
supplies. I expect the next thing will be a raid on our rear by Longstreet, wJio 
was cut off'." Another dispatch to same, dated Bristow, August 28th, 1862, 9.30 
a. m., and introduced by the accused, concludes as f ;llows : " I hope for the 
best. My lucky star is always up about my birthday, the 31st, and I hope 
McClellan's is up also. You will hear of us soon by way of Alexandria." To 
same officer, from Bristow, 6 a. m., 29th, he telegraphs : " Heintzelman and 
Reno are at Centreville, where they marched yesterday. Pope went to Centre- 
ville with the last two as a body guard, at the time not knowing where was 
the enemy, and when Sigel was fighting within eight miles of him and in sight. 
Comment is unnecessary. I hope Mc.'s at work, and we will soon get ordered 
out of this. It would seem, from proper statements of the enemy, that he was 
wandering around loose, but I expect they know what they are doing, which is 
more than any one here or anywhere knows." 

The precise import of these remarkable words, in their connection, cannot be 
mistaken, nor can it fail to be observed how harshly they jar upon the proprieties 
of military life. It may be safely affirmed that they express, on the part of the 
accused, an intense scorn and contempt for the strategy and movements of the 
army of Virginia, a weariness and disgust for his association with it, added to a 
bitter fling at his commanding general, as found in the extraordinary declara- 
tion, that he had taken two divisions of his army as a " body guard " to Centreville. 
The words, as quoted, disclose also a looking by the accused not to General 
Pope, but to General McClellan as his guide, and a reliance upon his exertions 
and influence to relieve him from his connection with the army of Virginia, 
and an expectation, if not a hope, that they would all soon arrive at Alexandria. 
This, it is true, would involve the discomfiture of that army, but it would also 
involve the discredit of its commander, and would restore the accused to his 
former position under General McClellan. Such must have been the anticipa- 
tion, and such certainly was the result. 



11 

lu explanation of these dispatches, and with a view to relieve the mind of the 
impression they tend to make, it was alleged in the defense, and was proved by 
General Burnside, that they were official in their character, and that the accused 
had been requested to furnish him information in reference to current military 
events occurring in connection with the army with which he was serving. So 
far as the purpose for which they were offered by the Government is concerned, 
it is wholly immaterial under whose prompting, or for what end, they were writ- 
ten. If the words make it manifest that the accused entertained ftelings of eon- 
tempt and hostility towards the army of Virginia and its commander, it matters 
hot whether they were spoken in a private and confidential, or in an official 
communication. The fact, however, that such words are found in a ^rave and 
formal official correspondence, must serve to show how strong these feelings 
were, and how difficult it was to repress their utterance. 

In reply to what must be regarded as the prevailing sentiment of the lan- 
guage quoted, there was read in the defense a dispatch from the accused to 
General McCIellan — which was not sent — dated September 2, 18G2. It is full of 
fervent patriotism, and of pi-ofessions of devutiou to his duty in connection with 
the army of Virginia and its commander. The court undoubtedly gave to this 
paper the consideration it deserved. Unhappily, it came too late. The army 
of Virginia had suffered, in the way of disaster, all that the enemy and the inac- 
tion of the accused could inflict upon it; and at the very moment this dispatch 
was written, the field for the " cardial co-operation and constant support " which 
it promised, was being swept away by the order issued that mornirig for the 
army of Virginia to fall back within the entrenchments of Washington, and, of 
course, under the command of General McCIellan. 

The testimony furnishes yet other indications of the animus of the accused. 
General Pope was warned by General Roberts, and Lieutenant Col. Smith, and 
by others, that the accused " would fail him." In his frank and unsuspecting 
nature, he seems to have flung the imputation from him. He had not then the 
light which the pj^ges of the record before you now furnish. When, afterwards, 
on his arrival at Washingtoi), he was informed of the dispatches sent by the ac- 
cused to General Burnside, his mind appears to have been very differently im- 
pressed. 

In the afternoon of the 28th August, General Roberts became satisfied that 
the accused was not doing his duty in good fairh to General Pope. He arrived 
at this conclusion as well from his alleged disobedience of the order to march at 
1 a. m. of that morning, as from the declaration of General Ke&rney. General 
Roberts had pnrviously held the accused in high estimation, and when men- 
tioning this to General Kearney, the latter said that " he (General Roberts) did 
not know him, and that he would fail General Pope." 

Lieutenant Colonel Thomas C. H. Smith, an aid-de-camp on the staff of Gene- 
ral Pope, called on the accused in the afternoon of the 28th of August. He 
had not heard of his disobedience of any orders, and had, like General Roberts, 
the most favorable opinion of his character and conduct as an officer; yet, such 
was the impression made upon him by his manner and conversation, that, at the 
close of their interview, he left him fully satisfied that he would fail General 
Pope, and would withhold from him his support in the then pending operations 
of the army of Virginia. Soon thereafter he arrived at the headquarters of Gene- 



12 

ral Pope, and said to him that he had just seen General Porter on his way there, 
and that he would fail him, and added : " So certain am I that Fitz John Porter 
is a traitor, that I would shoot him to-night, so far as any crime before God is 
concerned, if the law would allow me to do it." The impression thus expressed 
he still retains, and reiterated in his testimony. This evidence is of a most 
striking character, and should be closely examined with a view to the ascertain- 
ment of the weight to which the opinion of the witness is entitled. It has been 
stigmatized in the defense of the accused as "ravings," and as '*wi!d fantasies," 
which "encumber the i-ecord" as "rubbish." Such epithets were not warranted 
either by the language or manner of the witness. While expressing himself 
thus forcibly, it was evident that he was a man of fine intelligence, and equally 
evident that his conscientiousness rendered him careful and guarded in his state- 
ments. Certainly the particular impression referred to was deposed to with a 
depth and solemnity of conviction rarely paralleled in judicial proceedings. 
Under the pressure of the severe cross-examination to which he was subjected, 
he endeavored to lay bare the foundations on which his belief of the accused's 
meditated treachery rested. The task, however, was a difficult one, and he may 
not have been entirely successful. In reference to a large quantity of ammuni- 
tion ordered by and forwarded to the accused, but which had not been received, 
he manifested utter indifference, stating that " it was going where it belonged ; 
that it was on the road to Alexandria, where we are all going" — a favorite 
thought, as appears from his dispatches. His manner was sneeritig throughout, 
whenever allusion was made to m'atters connected with General Pope; and "his 
look was that of a man having a crime on his mind." It was physically impossi- 
ble for the witness to reproduce the manner, the tone of voice, and the expres- 
sion of the eye, and the play of the features, which may have so much influenced 
his judgment; yet these often afford a language more to be relied on than that 
of the lips. He could not hold up before the Court, for its inspection and appi-e- 
ciation, the sneer of which he spoke; and yet we know that a sneer is as palpable 
to the mental as a smile is to the natural vision. It is a life-lung experience that 
souls read each other, and that there are intercommuniugs of spirits, through 
instrumentalities which, while defying all human analysis, nevertheless completely 
command the homage of human faith. Great crimes, too, like great virtues, often 
reveal themselves to close observers of character and conduct as unmistakcably 
as a flower garden announces its presence by the odors it breathes upon the air. 
The witness may have misconceived this " look," but from the calamities likely 
to follow such an act of treachery, if indeed it was then contemplated, it must be 
admitted as altogether probable that the shadow of such a crime struggling into 
being would have made itself manifest. In view of the fearful perils which then 
menaced the army of Virginia, to which they owed a common duty, is it not 
passing strange that during this interview, the accused uttered not to the witness 
one word of kindness or cordiality, of encouragement or determination in refer- 
ence to the sanguinary conflict in which the morrow was to involve them with a 
common enemy? 

With this exhibition of the disposition of the accused towards the service in 
which he was engaged, I will proceed to review, as briefly as possible, the testi- 
■ mony in its bearing upon the charges and specifications of the record. 

The order of General Pope, set forih in the first specification of the first 



..<,-#. 



13 

charge, directed the accused, then at Warrenton Junction, to start at one o'clock 
on the morninff of the 28th of August, and to march with his whole corps so as 
to be at Bristow Station, distant nine miles, at daylight. It recited that General 
Hooker had " had a very severe action with the enemy, with the loss of about 
three hundred killed and wounded ;" that the enemy were retiring along the rail- 
road, and that it was necessary to drive them from Manassas and clear the country 
between that place and Gainesville. The urgency of the necessity under which 
the order M'^as issued was further expressed in these words : " It is necessary, ov, 
all accounts, that you should be here (Bristow Station) by daylight. I send an 
officer with this dispatch, who will conduct you to this place." The order was 
delivered by the officer referred to, (Captain Drake De Kay,) at between half-past 
nine and ten o'clock of the evening of the 27th. On delivering it he stated to the 
accused : " The last thing General Pope said to me, on leaving Bristow Station, 
was, that I should remain with General Porter and guide the column to Bristow 
Slation, leaving at one o'clock, and that General Pope expected him certainly to 
be there by daylight." General Hooker's command was out of ammunition, and 
an attack from the combined forces of Jackson and Ewell was expected early on 
the morning of the 28th, and hence the urgency with which this prompt and 
vigorous movement was pressed upon the accused. The order was not obeyed. 

The march, according to several of the witnesses, did not begin until daylight. 
Captain De Kay, who acted as guide, and moved at the head of the column, 
states that he was waked up just at dawn, and that he breakfasted before the 
march began. Captain Monteith, called by the accused, when asked if, in point 
of fact, the march commenced before daylight, replied, /*! think it was about 
dawn of day. " General Sykes, also a witness of the accused, deposed that his 
division led on that morning; that he generally allowed from one and a half to 
two hours between reveille and the advance ; that on the morning of the 28th, 
the reveille was beaten from \ to \ past 2 o'clock, and that the advance was 
sounded as soon as they could distinguish the road — thereby evidently referring 
to the dawn of day. General Pope having been asked whether, on the receipt 
of certain messages from the accused, the latter was on his march in obedience 
to the order of the 27th of August, answered : 

"I do not know that he was. On the contrary, from a nete I had received 
from him, I did not understand that he would march until daylight in the morning." 

While the weight of the testimony is to the effect that the troops did not move 
forward until daylight, none of the witnesses represent them as having done so 
earlier than 3 o'clock, and the arrival at Bristow Station took place, not at day- 
light, as directed by the order, but at twenty minutes past ten of the forenoon 
of the 28th. If our army — a large part of it without ammunition — had not, in 
the meanwhile, been fallen upon and beaten, it was not because of any exertions 
made by the accused to prevent such a catastrophe, but simply because the en- 
emy had not thought proper to make the anticipated attack. 

The violation of this peremptory order is sought to be excused, or rather fully 
justified by the accused on three grounds : first, the fatigue of his troops ; sec- 
ond, the darkness of the night ; third, the obstructions on the road growing out 
of breaks and difficult places in it, and the presence of wagon trains in motion. 

A part of the troops had marched on the 27th from seventeen to nineteen 
miles — the remainder not so far. The command of General Sykes had marched 



14 

but from twelve to feurteen miles. A portion of them did not arrive at their 
encampment at Warreuton Junction until about sundown — half past six o'clock; 
the others arrived earlier — some of them as early as ten o'clock in the morn- 
ing. The generals who advised and participated in the determination not to 
move at one o'clock, deposed that their troops were very much exhausted. Had 
the order beeu obeyed, the troops reaching their encampment earliest would 
have had fifteen hours, while those arriving latest would have had six hours and 
a half for rest. Would not this have been sufficient to prepare them for a march 
of only nine miles ? Had they reached Bristow Station at daylight, the march 
for none of them would have exceeded twenty-eight miles in twenty-four hours, 
while for a large part of the command it would have been less. Does not the 
military history of the world show that in great emergeucieS'such forced marches 
often occur, and that soldiers are fully capable of enduring them ? 

The early part of the night was starlit, and not unusually dark. At about 11 
o'clock the sky became overcast, aud the night grew very, or as some of the wit- 
nesses express it, " exti'emely dark," and so continued until morning. It was a 
darkness, however, not complicated with cold, or rain, or storm. It is a notice- 
able fact, also, that the determination not to move at 1 o'clock in obedience to 
the order, was not occasioned by this extreme darkness, but had been taken be- 
fore Captain DeKay lay down, which was at 11 o'clock. 

The first answer to the position taken in the defense, that in consequence of 
this darkness it was impossible to obey the order, is found in the testimony of 
Captain Duryea, who deposes that on the night of the 27th of August, he 
marched with his command from Warrenton, and did not halt until about mid- 
night, and that ''' he did not experience any unusual difficulties growi"ng out of 
the night." Major F. S. Barstow was also on the march that night until 9 
o'clock, and was up the following morning before daylight, and says: "I have 
no vivid recollection of that night beyond other nights. It seemed to me to be 
very much like other nights 0!i which we moved." He adds that no difficulty 
was experienced in marching the troops up to the hour at which they encamped. 
Lieutenant Colonel Myers, who, as chief quartermaster to General McDowell, 
had charge of the trains passing over this road on the night of the 27th, states 
that he was up nearly all that night. He was asked the following question : 

Question. In view of the condition of the road, as you have described it, and 
also the character of the night, was or was not the movement of troops along 
that road practicable that night? 

He replied : 

" I do not know of anything to hinder troops marching along the railroad 
there. There was a road running each side of the railroad. I should think it 
would have been easy for troops to move along there, although I may be mis- 
taken in that." 

General Reynolds, called by the accused, and who entertained a very stronj- 
estimate of the embarrassments in the way of the march of troops on the night o 
the 27th, over the road to Bristow Station, admitted, on cross-examination, tha 
dark as was the night, trpops could have marched, provided they had had a roa- 
and a guide to conduct them — both of which the command of Gen. Porter hac. 
General Heintzelman testifies that it was not impossible for troops to hav 
marched over that road on the night of the 27th, but that there would have bee ' 



15 

a great many stragglers, of which, he said, there are more or less on all night 
marches. He describes the road as narrow, but " in tolerably good condition." 
General Pope was asked this question : 

Question. " If there were any obstacles in the way of such a march as your 
order contemplated, either growing out of the night or the character of the road, 
will you please state them ?" 
He answered : 

" There was no difficulty in marching, so far as the night was con- 
cerned. I have several times made marches with a larger force than General 
Porter had, during the night. There was some obstruction on the road, in a 
wagon train that was stretched along the road, marching towards the Manassas 
Junction, in rear of Hooker's division, not sufficient, in my judgment, to have 
delayed, for any considerable length of time, the passage of artillery. But even 
had the roads been entirely blocked up, the railroad track was clear, and along 
that track had passed the larger portion of General Hooker's infantry. There 
was no obstruction to the advance of infantry." 

There were a very few breaks in the road, but its general condition is shown to 
have been good. General Pope made the following statement on this poiut : 

"Along the road between Warrenton Junction to Kelt'o Run, wImcH i-: per- 
haps three miles west from Bristow Station, ihe triii.'k !iiu! been lorn up in 
places ; but during the day of the 27th of August, I directed Captain Merrill, of 
the Engineers, with a considerable force, to repair the track up to the bridge over 
Kettle Run, which had been burned. He reported to me on the night of the 27th 
that he had done so ; so that from Warrenton Junction to the bridge over Kettle 
Run, there was no obstruction on the railroad of any description. The bridge 
to Kettle Run had been burned, but a hundred yards above the bridge the road 
crossed the creek by a ford. And from there towards Bristow Station, the most 
of the country, in fact nearly the whole of it, was open country ; that is as I re- 
member the country, riding along on the afternoon of the 27th of August." 

Gen. Roberts, who passed from Warrenton Junction to Bristow Station, on the 
27th, says: "The condition of the road was good generally;" and in another 
part ot his testimony. General Pope used this language : " The road was in good 
condition everywhere. At most places it was a double road on each side of the 
railroad track. I am not sure it was a double road all the way ; a part of the 
way, I know it was." Captain DeKay states that "the road was good," and 
Lieutenant Brooks, who ^yas well acquainted with it, that it was "very good.'' 
Lieut. Col. Myers was asked : 

Question. " What was the condition of the road between Warrenton Junction 
and Bristow Station at that time, (27th,) so far as regards the passage of 
wagons, artillery, &c. ?" 

Answer. " It was in excellent condition at that time." 

The chief obstructions upon the road, however, and those most elaborately 
presented by the evidence and argument of the accused, were wagon trains. 
Captain DeKay thinks that, had the march begun at one o'clock, the greater 
part of these wagons would probably have been in camp, and would thus have 
been avoided. A part of them are shown to have been on the road throughout 
the night, and between two and three o'clock Colonel Cleary found them so 
jammed as to constitute a serious obstruction for some three miles. But even 
here the railway track was alongside of the road, and could easily have been 



16 

used by the infantry. For the first three miles from Warrenton Junction, it was 
in proof that the road was wholly unobstructed. 

Captain Fifield, a witness of the accused, deposed that with one hundred men 
he could have prevented the jam of the wagons, and that with one hundred and 
fifty he could have kept the road entirely clear. "WTiy did not the accused detail 
this force, and at once remove the obstacles which are now relied on to escuae 
him for this alleged disobedience of orders ? The testimony leaves no doubt but 
that he could have done so, and that every wagon might thus have been taken 
out of the way of his troops by one o'clock. The subject does not appear to have 
been discussed, or even thought of. It is true that at twelve o'clock on the night 
of 2Tth Lieut. Brinton came from Catlett's Station to Warrenton Junction, and 
on having an interview with the accused, he spoke to him of the wagons on the 
road : whereupon accused directed him on his return to have the road cleared. 
On his arrival at Catlett's Station, he told the adjutant "to send out some men to 
get these wagons out of the way. " He does not know that the direction he 
gave was complied with. This was at one o'clock, the hour at which the troops 
should have been in motion. All the circumstances surrounding this direction 
on the part of the accused, leave the impression that he could not have anticipa- 
ted from it, the removal of the obstacles in his way. It was accidental, and 
was without vigor or precision, and given at an hour that showed the subject 
had not been with him, one of any solicitude. It is observable also, that even 
this feeble and inefficient provision looked to clearing the road, not for a march 
at one o'clock — for all thought of that had been abandoned — Isut at daylight, 
or at earliest at three o'clock. 

On the consultation which took place between the accused and his generals 
when the order was received, the opinion was expressed by the latter — and it has 
been repeated in their testimony — that nothing would be gained in the way of 
time by starting at one o'clock, instead of a later hour — say three or four. As 
starting at three would require a night march of one hour, and starting at one a 
night march of three hours, this opinion imports a declaration that the troops 
could march no further in three than they could in one hour, the darkness for 
the whole period of time being the same. If the opinion referred to a starting 
at daylight, then it carries with it the assumption that during the three hours, 
from one to four o'clock, the troops would have been unable to make any pro- 
gress whatever, and this, notwithstanding the three first miles of the road from 
tiieir encampment is shown to have been entirely unobstructed. Surely these 
opinions have not been well considered. 

There are certain other facts disclosed in the testimony which go far to indi- 
cate a settled purpose on the part of the accused to disregard this order of his 
commanding general. It was couched in terms as strong as a military man 
could employ in addressing a subordinate; and yet its urgent language was 
not commented upon, and does not seem to have attracted any attention, as 
appears from the conversation that ensued between the accused and his 
generals after its receipt. The accused, as we learn from Captain De Kay, 
handed it to one of his generals present, saying, " There is something for you 
to sleep on " — not something that you are to prepare to execute — not some- 
thing which announces that the army with which we are connected is threatened 
by great perils, which we must make extraordinary efforts to meet, but " some- 



17 

thing for you to sleep on." The whole tone of that conversation was, to the last 
degree, saddening and discouraging for those who believe that, in the prosecution 
of this war, much vigor is much wisdom. 

Again: General Griffin, called by the accused, testified that, after having 
marched about a mile with his brigade, he came to a halt, and remained tbere 
until two hours after daylight ; and the remainder of the forces no doubt did 
the same. This explains why the arrival at Bristow Station was not until twenty 
minutes past ten. No reason, that deserves a moment's consideration, is given 
for this long delay. It is true that General Griffiu says : " I know the artillery 
which followed the brigade — that is, a carriage or two of the artillery which 
followed the brigade — got stuck in the mud or in a little creek, and had trouble 
in getting out." When more closely questioned as to the cause of the halt, 
he said : " I halted because I found, when I got to the point where I did halt, 
that I had only a portion of my brigade with me. In the darkness, by some 
accident or other, we had become separated, and I halted to get my brigade 
together. And the artillery, I presume, is what detained us there until we 
started again. That is my impression. I do not know that positively. General 
Morrcll was in command of the division." This may explain the ha!t, but 
not the delay until the late hour mentioned. It was in summer, and a season of 
drought, as appears from the clouds of dust which are continually brought 
to our notice by the testimony ; and we cannot be misled as to the amount of 
obstacle the mud in such a stream, at such a season, would offer to the onward 
march of soldiers determined to do their duty. 

Again: when the forces were in motion there was no haste or vigor dis- 
played. Captain De Kay says " the march was at the rate at which troops 
would move if there was no necessity for a rapid movement ;" and, he adds, 
"they could have moved faster than they did." General Pope deposed: "I 
sent back several officers to try and see General Porter, and request him to 
hurry up and report to me where his troops were, as I was very apprehensive 
that after day had dawned, we should have an attack upon us from the enemy." 
" I think they all returned. The report made to me was that General Porter wai 
coming along very slowly, and was pushing the wagons out of the road." 

Whatever may be thought of the difficulties in the way of the night march 
required by this order, it was the manifest duty of the accused to make a 
sincere and determined endeavor to overcome them. If, after having promptly 
and vigorously made this effort, and started as ordered, he had failed to arrive 
at Bristow Station at daylight, either from the exhaustion of his troops, the dark- 
ness of the night, or the character of the road, the responsibility of tbe failure 
would not have been charged upon him. The contemptuous and unfriendly 
feelings disclosed in the dispatch to General Burnside — which was written 
but about five hours and a half before this order was received — will probably 
furnish a more satisfactory solution of the question why this effort was not made 
than can be found in the nature of the obstacles themselves. 

Nor is it believed that the conduct of the accused finds any shelter in the 
Napoleonic maxim quoted in the argument for the defense. The discretion it 
allows to a subordinate, separated from his superior officer, is understood to 
relate to the means, and not the end of an order. ' When the accused determined 
that, instead of starting at one o'clock, he would start at three or four, he did not 



18 

resolve that he would arrive at Bristow Station by daylight in a different manner 
from that indicated by his commanding general, but that he would not arrive 
there by daylight at all. In regard to this, the end of the order, he had no 
discretion. 

The order set forth in the second specification to first charge was addressed 
to Generals McDowell and Porter, jointly, und a copy, or, rather, duplicate ot 
it, was delivered to each of them — it may be inferred from all the evidence on€he 
point — at about ten o'clock in the morning of the 29th of August. Previously 
to this they had met with their forces, and, under the 62d Article of War, 
General McDowell had assumed the command. The order directed them to 
move with their joint command towards Gainesville until they should effect a 
communication with the forces of Heintzelman, Sigel and Reno, and then to 
halt, taking care to occupy such a position that they could reach Bull Run 
that night or by the morning of the following day. The order contained these 
further words: "If any considerable advantages are to be gained by departing 
from this order it will not be strictly carried out." At the time this order 
reached Generals McDowell and Porter they were on the road between Manassas 
Junction and Bethlehem Church, and were proceeding in the direction of 
Gainesville, as the order contemplated. The order being issued to them jointly 
showed that it was the purpose of General Pope that they should act indepen- 
dently of each other, and each indirect subordination to himself; and he testified 
that such was his intention. Under these circumstances it may be well ques- 
tioned whether, under the 62d Article of War, General McDowell could continue 
the command which he had assumed over their joint forces. That article 
■excludes the idea of the presence of an officer superior in rank to those com- 
manding the different corps of which it speaks. In this case General Tope 
was absent but a few miles — was in fact occupying the same field of military 
operations with Generals McDowell and Porter, and claimed to decide the ques- 
tion (which it^ certainly belonged to him to determine) that these generals were 
80 far in his presence that he might command them directly, and not through 
each other. 

Their forces continued their march — those of the accused being in the 
advance — until the front of his column had reached some three miles beyond 
Bethlehem Church, and until a small part of General McDowell's command had 
passed that point. General McDowell then rode forward to the head of the 
column of the accused, where an interview and conference took place between 
them, to which reference is frequently made in the testimony. They discussed 
the joint order, and General McDowell determined for himself, that there were 
" considerable advantages to be gained by departing from it," and by moving 
with his forces along the Sudley Springs road towards the field of a battle 
then being fought by the main army of General Pope, at the distance of three 
or four miles. His purpose was to throw himself on the enemy's center, and 
he wished the accused to attack his right flank. He, therefore, said to him, 
"You put your force in here, and I will take mine up the Sudley Springs 
road, on the left of the troops engaged at that point with the enemy ;" and he 
left him, at about 12 o'clock, with the belief and understanding that he would 
put in his force at that point. Why this expectation was doomed to disappoint- 
ment, may possibly be gathered from the following extract from General 



19 

McDowell's testimony as to wLat occurred during his conversation w'ith the 
accused : 

Question. " You have said that the accused made an observation to you which 
showed that he was satisfied that the enemy was in his immediate front. 
Will you state what that observation was?" 

Answer. *'I do not know that I can repeat it exactly, and I do not know that 
the accused meant exactly whnt the remark might seem to imply. The obser- 
vation was to this effect — (puttiiig his hand in the direction of the dust rising 
above the top of the trees) — ' we cannot go in there any where without getting 
into a fight.' " 

Question. " What reply did you make to that rem irk?" 

Answer. " I think to this effect : ' That is what we came here for.' '' 

These words will certn,inly stand in memorable contrast with the sad utterance 
to which they were a reply. 

General McDowell, on parting with the accused, ceased to exercise any au- 
thority over his command, and he was thus left untramraeled and in possession 
of the joint order still in full force. Soon after. General Griffin's brigade — a 
part of the corps of the accused — was ordered to move to the right, as if for the 
purpose of advancing on the enemy, as directed by General McDowell. It had 
proceeded, however, only about six hundred yards, when, coming into "some 
small pine bushes," and somebody s 'ying there were obstacles ahead, a retreat 
was ordered, and they fell back to their original position. Gener^il Griffin saw 
no obstacles himself, and he made no reconnoissance. This was all that was 
done towards carrying into effect the stirring and soldierly direction of General 
McDowell. 

Some time after this faint demonstration — it may have been an hour or more, 
General McDowell having left at about 12 — a rebel battery threw three or four 
shot at the head of the accused's column. It was at once replied to and 
silenced, and then came the order tn fall back, of which Colonel B. F. Smith, 
who witnessed the artillery firing, speaks so distinctly. The note of the accused 
to Generals McDowell and King, which was read in evidence, and is without 
date, must have been written immediattly after this artillery firing, and after the 
order to retreat which followed it. It is in the following words : 

"Generals McDowell and King: I found it impossible to communicate by 
crossing the roads to Groveton. The enemy are in strong force on this road, 
and as they appear to have driven our forces back, the firing of the enemy 
having advanced and ours retired, I have determined to withdraw to Manassas. 
I have attempted to communicate with McDowell and Sigel, but my messengers 
have run into the enemy. They have gathered artillery and cavalry and infan- 
try, and the advancing masses of dust show the enemy coming in force. I am 
now going to the head of the column to see what is passing and how affairs are 
going. Had you not better send your train back ? I will communicate 

with you. 

F. J. Porter, Major General." 

This note appears to have been written for the purpose of explaining why the 
accused had not " put his force in " at the place which General McDowell had 
pointed out. It announces most energetically a determination " to withdraw," 



20 

i. e., retreat to Manassas, because of the approach of the enemy, and because 
the battle seemed to be going against the Federal forces. That this purpose 
was promptly carried out, substantially, if not to the letter, is made evident from 
the fact that at between five and six o'clock, the accused was found at or near 
Bethlehem Church, surrounded by his troops, whose arms were stacked. It is 
further proved by Colonel B. F. Smith, who was in the front, at the time of the 
artillery firing, and alleges that he and the troops of his command then fell 
back under orders, to within a mile or two of Manassas, where they passed the 
night, having arrived there in the afternoon. It is yet further shcvn by General 
Griffin, examined by the accused, who says his brigade retreated from a mile 
and a half to two miles. This I'etrogade movement might have been excused, 
had it been made in good faith for the purpose of reaching Bull Run that night; 
but no such purpose was entertained, nor has it been insisted that it was, either 
by the testimony or the argument. General McDowell says the accused might 
have attacked the enemy, and would have still had ample time for falling back 
on Bull Run. Indeed, as appears from the map, such an attack would have been 
an advance in the direction of Bull Run. He might have found justification, 
too, for this step, had it been taken from a conviction that in the sense of the 
order, "considerable advantages" were to be gained by departing from its 
terms. No such position, however, could be successfully taken in the defense. 
The only "advantages" which the retreat promised, were the personal safety of 
the accused and staff, and the exemption of his troops from any participation in 
the sanguinary battle then being fought immediately to his right. Surely such 
advantages as these, purchased, as they were, at the imminent hazard of the 
sacrifice of the whole army, were not those contemplated by the order. The ad- 
vance of the accused, either along the Gainesville road or to the right, would 
have brought him into conflict with the enemy. The court concluded, and 
justly, that his falling back, under the circumstances and for the purpose men- 
tioned in his note to Generals McDowell and King, was a violation of the joint 
order to himself and General McDowell. 

It would seem also to have been a manifest violation of the duty resting on 
him as a soldier in the position in which he was placed, without reference to any 
specific order or direction, leading or directing him to engage the enemy. In 
forward, aggressive movements, it is an established principle of military science 
that the columns shall be so held in their advance as to be ready to afford 
mutual assistance in time of need. Another elementary principle of such 
movements is, that in the absence of positive, restraining orders, the march shall 
always be towards the sound of the guns — thus confirming the sentiment of the 
words of General McDowell, that it is the soldier's mission to fight. Both these 
fundamental rules of the military profession were disregarded in the retreat of 
the accused. He fell back precisely at the moment that the obligation to co- 
operate which was pressing upon him, required him to advance, and his march 
was not towards, but from the sound of the enemy's cannon. 

The order of 4.30 p. m., August 29, directed the accused " to push forward 
into action at once on the enemy's right flank, and, if possible, on his rear." 
It was not obeyed, nor was any attempt made to obey it. 

It was claimed in the defense that the accused should not be condemned for 
this disobedience: first, because the order was received too late to be obeyed 



21 

and secnndlv, becau'e obedience to it was impracticable in consequence of the 
presence of the enemy in overwhelming furee, and in consequence of the char- 
acter of the country over which the movement would have had to be made. 

There is a decided conflict in the testimony as to the hour at which the order 
was received. It bears date 4:30 p. m , and Captain Pope, the staff otficer who 
bore it, says that he proceeded direct from General Po"pe to the accused, and 
delivered it " as early as five o'clock, or prob'^bly three or tour minutes after 
five." Charles Dutfep, the orderly who accompanied him, testifies that they left 
General Pope at about half past four, and went on to the headquarters of the 
accused, at apace " about as fast as they thought their horses could travel." 
He thinks about an hour was occupied on the road, and that the order reached 
the accused at about halt-pa?t five. These statements are corroborated by the 
evidence of General McDowell as to the time and place at which he met them, 
and read the order. General Pope saws : '' I know that an aid de-camp, riding 
rapidly, could go from the field of battle to Manassas Junction, or to any point 
west of Manassas Junction, on 'he Gainesville road, if he found General Porter 
in advance of Manassas Junction, within an hour, by going at speed." General 
Roberts, who was present when the order was issued, expressed the opinion that 
it should have been delivered " in half an hour or less, as orders are generally, 
carried on such occasions." Adoprinsr the latest e-timate — that of General 
Pope and the orderly — this would give the accused two hours of daylight, within 
which to make the attack. 

On the other hand, there are five witnes^ses introduced by the accused — three 
of them being his staff officers — viz : General Sykes, Lieutenant Colonel Locke, 
Captain Monteith, Lieutenant Weld, and Lieutenant Ingham, who depose that 
the order was not received until abouc sundown. One of them indeed — though 
he is not supported by the others — fixes the hour much later. If in ascertaining 
the value of testimony, witnesses were count«d, and not weighed, the question 
would be at once settled by the relative uuuibers as given. Such, however, is not 
the rule of law, and it may be that after carefully considering all the circum- 
stances, the court felt that the explicit and intelligeut statements of Capt. Pope 
ftnd his orderly, fortified by the corroborative evidence of Gens. Pope, McDowell 
and Roberts, were not ovt^rcome by the opinions of the five officers named. 
There was, outside of the positive testimony, a consideration strongly supporting 
this view, .s,nd it is this : There is no question as to the time at which Captain 
Pope left with the order; it was at 4^ o'clock ; he rode as fast as his horse could 
carry him, and had but about five miles to travel ; and yet, according to the 
theory of the defense — that he did not arrive until sunset, or half-past six — he 
was two hours on the way. Is it credible that a staff oflic'^r, bearing an im- 
portant order, in the midst of a fiercely-contested battle, would have traveled 
at this rate ; and this, too, when he was conducted by an orderly acquainted 
with the road, and encountered no obstacle to his progress ? Is it not much 
more probable that but a single hour was occupied, and that, in point of fact, 
he arrived at half past five? 

Conceding, however, for the sako of the argument, the position taken by the 
defense, that the order was not received until sunset, this would have left the 
accused an hour of daylight within which to mike the movement. The enemy 
had been so far encouraged in their advance by the inaction of the forces of the 



22 

accused, and by their falling back, that at this late moment the front of his 
column was not separated from the advance of the rebels by more than a mile 
or a mile and a half. But little time therefore was required to make the attack. 
It is admitted that it was not madp ; but was there any earnest or vigorous effort 
on the part of the accused to obey the order ? Col. Locke states that soon after 
the receipt cf ihe order from General Pope, he bore one from the accused to 
General Morrell, directing- him to engage the enemy — which, as appears from 
the statement of Colonel Marshall, was to be done with but four regiments — but 
General Morrell lestified that before there was lime to carry this order into exe- 
cution — say within about half an hour after its receipt — it was countermanded 
by another, dii-ecting him to pass the night with his troops where he was. This 
was all that was done towards attacking the enemy ; and yet General McDowell 
testified that an attack even at this late hour — indeed at any hour before the 
battle closed, which was at dark — would have resulted in a victory for our arms. 

There is one fact — probably the most remarkable one disclosed by the record — 
which must have impressed the court as going far to manifest the true spirit of 
the conduct of the accused on this occasion. The forces of General Morrell 
were in the front, and those of General Sykes were immediately in their rear, 
and supporting them. In the progress of any determined movement against the 
enemy, therefore, the command of General Sykes would be necessarily involved, 
and the presence of that General would be required ; yet Gen. Sykes states that 
he was with Gen. Porter when the order from General Pope was received, and 
■when that to Gen. Morrell was sent ; that he remained with him all the evening 
and night, and that he never heard that an order to attack the enemy had been 
received from Gen. Pope, or had been forwarded to Gen. Morrell. What con- 
olusion is necessarily drawn from this ? If the accused had seriously determmed 
that the order to Gen. Morrell should be executed, would he not have apprised 
General Sykes of its character, and directed him to proceed at once to his com- 
mand ? When we add to this the feebleness of the attack directed — being but 
with four regiments — and the further fact that the order was revoked before it 
was possible to make the movement, can we escape a painful impression that 
the order itself was issued without any expectation that it would or any purpose 
that it should be obeyed ? 

There is yet one other fact presented in connection with this order which 
deserves a passing notice. Captain Pope found the accused with his troops 
halted, and the arms of some of them stacked. After delivering the order, and 
during his stay of fifteen or twenty minutes, he did " not observe any orders 
given, or any indication of preparation lor a movement in the direction of the 
battle-field." On his return, nearly an hour afterwards, the same condition of 
things existed. The following extract from the testimony of Mr. Duffee, who 
accompanied Captain Pope, will yet further illustrate tlie absence of all anxiety, 
if not of all interest, on the part of the accused : 

" Question. Did you see the order delivered into the hands of General Porter? 

*The troops of General Sykes extended along the road from those of General Morrell to- 
ward>', and it may be, to where General Porter was. It is not, therefore, intended to intimate 
that, in being with General Porter at the moment, he was out of place, but to say that had 
it been General Porter's purpose that his order to General Morrell to engage the enemy 
should be vigorously carried out, he woub', from General Sykes's necessary relation to tho 
movement, have advised him of it, and have directed him to go forward and prepare for 
performing his part in its execution. 



23 

t 

"Answer. Yes, sir ; I saw him take the order from Captain Pope. 

" Question. Was he in his tent or out of doors ? 

" Answer. He was lying down under a shade tree when he took the order. 

" Question. Did he change his position on reading the order, or did he con- 
tinue to lie down ? 

" Answer. I cannot state positively whether he rose to his feet or not; but at 
the time he was reading the order, I noticed that he was lying in this position 
on the ground, (describing him as resting ou his elbow, his head upon his liand.) 

'' Question. Did you leave him lyiug down on the ground when you came 
away ? 

" Answer. Yes, sir." 

The accused had, for between five and six hours, been listening to the sounds 
of the battle raging immediately to his right. Its dust and smoke were before 
his eyes, and the reverberation of its artillery was in his ears. He must have 
known the exhaustion and carnage consequent upon this prolonged conflict, and 
he had reason to believe, as shown by his note to Generals McDowell and King, 
that our army was giving way before the heavy reinforcements of the enemy. He 
had a command of some 13,000 fresh and well appointed troops, who had 
marched but a few miles, and had not fought at all on that day. Under these 
circumstances, should not an order to charge the enemy have electrified him 
as a soldier, and have brought him not only to his feet and to his saddle, but have 
awakened the sounds of eager preparation throughout his camp ? But the bugle 
note of this order seems to have fallen unheeded, and after reading it, and at 
the close of an interview of from fifteen to twenty minutes, the messengftr who 
bore it, turned away, leaving the accused still " lying on the ground." 

There is some contrariety in the evidence as to the force of the enemy by 
which the accused was opposed. The weight of the testimony is that it was 
small— decidedly so in the early part of the afternoon, when the attack directed 
by Gen. McDowell should have been made. Gen. Roberts thinks there was < nly 
a cavalry force, with some light artillery. Col. B. F. Smith, who was at the 
head of the column at the time the rebel battery was silenced, and who fell back 
with his command half an hour afterwards, noticed clouds of dust beyond the 
trees, but whether there were troops advancing or moving in another direction, 
he could not tell. He saw nothing to induce him to believe that they were 
retreating before the enemy, but supposed that they had been making a recon- 
noissauce in force, and having completed it, were falling back for some other 
duty. Gen. Griffin, a witness for the accused, who was also at the front, and 
enjoyed every opportunity of observation, having been asked as to the position 
of the enemy in relation to Gen. Porter's corps, between 5 and 7 o'clock of the 
29th, replied, " It is a hard question to answtr. I do not know much about the 
enemy ; I only liiiow that, during the day, large clouds of dust, were going to 
our front and to our left, from a point stated to us then to be Thoroughfare Gap. 
The batteries which opened upon us at 1 o'clock were within 1,200 or 1,500 
yards of us. We saw no force at all ; we saw scattering groups of horsemen, or 
of infantry. I do not believe we saw in any one group over forty men. " 

Major Hylaud, who belonged to Colonel Marshall's regiment of skirmishers, 
and was some eight hundred or a thousand yards in advance of General Mor- 
rell, says the enemy began to form in his front and to the right between 2 and 



24 

3 o'clock. He saw none to the left. Thinks the force was very large, and 
although unable to give even a proximate estimate of their numbers, believes 
they were strong enough to have r^isted an attack of General Porter's corps. 
Second lieutenant Stevenson supposed the enemy's forces to consist of from 
twelve to fifteen thousand ; but he was a young man, with limited experience, 
and when he stated that the enemy's line of battle was but a mile long, it was 
sufficiently evident that a large abatement was to be made from his estimate. 
Colonel Marshall set the enemy's troops down at twice the number of the corps 
of the accused. It is obvious, however, that he was largely influenced in forming 
this opinion from the clouds of dust, which may have arisen as much from the 
movement of ambulances and wagons, as from the march of troops. He states 
that they came from towards Thoroughfare Gap, and separated into two col- 
umns, one of which proceeded in the direction of the battlefield, at Groveton, 
and the other came down on the Gainesville and Manassas road. Now, we learn 
from General Buford that the enemy's forces passing through Gainesville that 
day from Thoroughfare Gap, and counted by himself, did not exceed fourteen 
thousand men, and dividing these into two columns, it is believed that at no time, 
on the 29th, could the accused have been confronted by a rebel force exceeding 
seven thousand — a little more than one half the strength of his own corps. The 
strong probability is that the force was not so large ; but supposing the enemy 
to have had quite as large a force as his own, was that a reason why he should 
not make the attack, seeing that a severely contested battle was then pending? 

The course of the inquiry on the part of the defense would seem to imply an 
impression that the accused could not attack the right flank because he found an 
enemy in his front, and could not attack the front because the order was to en- 
gage the right. A dead lock, however, in military movements could scarcely be 
suffered to be produced by such a process as this. General McDowell solves 
this question, by saying that if the enemy's forces were posted in the front of the 
accused in the manner indicated by the witnesses, they must have constituted his 
right flank, so that a movement in that direction would have been a literal com- 
pliance with the order. 

A conclusive reply to the suggestion that the ground between the enemy and 
the accused was impracticable f jr military movements is found in the testimony 
of Lieutenant Colonel Smith. He says : "I infer that the corps of the accused 
could have moved up, its right wing joining with the forces engaged, and have 
flanked the enemy. This is not all an inference merely from the general charac- 
ter of the country. It is based also on the fact that that portion of the country 
over which, as I understand it, the corps of the accused would have moved upon 
the enemy was sufficiently practicable to enable the enemy, as they did, to make 
a similar movf.ment on our left on the next day." 

Some of the witnesses of the accused declare that artillery could not have 
passed over this ground, while others testified that infantry could not have been 
marched through the woods in any order. Under a cross-examination, however, 
the obstacles on which thcae opinions were based were much reduced in the at- 
tesjupt to enumerate them. The general description of the country given is that 
it is opei!, with fields and woods and occasional ravines, but not remarkable for 
its ruggedness. There were n« impassable streams or morasses, or precipices. 
General McDowell deposed that he did not consider that there were any insu- 



25 

perable obstacles " in the way of the advance on the part of General Porter's 
command upon the flank of the enemy ;" and he proved the sincerity of this 
opinion by directing him to make the movement. After reciting in detail certain 
facts leading to this belief, he thus concludes : " These movements by these two 
divisions of my corps, my own movements, and the movements of the enemy, 
give me the belief that troops could move through the country comprised between 
the Warrenton turnpike and the Sudley Spring road and the road from Bethlehem 
Church to Gainesville. I will mention further, that that country is a mixture of 
woods, cleared ground, and hills, and that, it is easy for troops to march without 
being seen or seeing the enemy." A glance at the map which accompanies the 
record will show that the ground in question is embraced by this boundary and 
description. 

It may be admitted — and perhaps the testimony requires the admission to be 
made — that in falling upon the enemy on the afternoon of the 29th the accused 
would have encountered both difficulty and danger ; but difficulty and danger, 
in time of war, are daily and hourly in the category of the soldier's life. Their 
presence should be for him, not a discouragement, but an inspiration. To grap- 
ple with them should be his ambition ; to overcome them, his glory. 

That a vigorous attack upon the enemy by the accused, at any time between 
twelve o'clock, when the battle began, and dark, when it closed, would have se- 
cured a triumph for our arms, and not only the overthrow of the rebel forces, but 
probably the destruction or capture of Jackson's army, the record fully justifies 
U3 in maintaining. This opinion, in effect, is emphatically expressed by Gene- 
rals Pope, McDowell and Roberts, and by Lieut. Col. Smith, all of whom par- 
ticip ited in the engagement, and were well qualified to judge. General Roberts, 
who was on the field throughout the day, says : "I do not doubt at all that it 
would have resulted in the defeat, if not in the capture of the main army of the 
confederates that were in the field at that time." To the same effect is the fol- 
lowing explicit language of General Pope: "Late in the afternoon of the 29th 
— perhaps towards half-past five or six o'clock — about the time that I hoped 
General Porter would be in his position and assaulting the enemy on the flank, 
and when General McDowell had himself arrived with his corps on the field of 
battle, I directed an attack to be made on the left of the enemy's line, which was 
handsomely done by Heintzelman's and Reno's corps. The enemy was driven 
back in all directions, and left a large part of the ground, with his dead and 
wounded upon it, in our possession. Had General Porter fallen upon the flank 
of the enemy, as it was hoped, at anytime up to eight o'clock that night, it is my 
firm conviction that we should have destroyed the army of Jacksou." Even had 
the attack itself failed. General McDowell states that the number of troops which 
would have been v/ithdrawn from the main battle by the enemy to effect this 
result would have so far relieved our center as to render our victory complete. 
When we recall the calamities already suffered by our country, and contemplate 
the untold griefs to the homes and hearts of its people, which may yet follow 
from the escape of that army on that day, we can appreciute with some ap- 
proach to accuracy the responsibilities incurred by a line of conduct which so 
certainly and so fatally led to that disaster. 

The first, second, and third specifications of the second charge, arraign the 
conduct of the accused on the 29th, under the o2d Article of War, as "misbe- 



26 

havior before the enemy." If a soldier disobeys the order of his supetior officer 
before the enemy, he commits a double crime, by violating both the 9th and 
52d Articles of War ; and he may be prosecuted and convicted of either or both 
offenses. So any other breach of duty, connected with military movements, and 
occurring in the presence of the enemy, has assigned to it by the Articles of 
War a depth of criminalty which would not belong to it under other and ordi- 
nary circumstances. This results from the increased disaster likely to follow 
from misconduct in such a conjuncture, and from the fact that insensibility to 
duty is doubly criminal when displayed in the midst of those dangers which ever 
inspire the true soldier with renewed devotion to the honor and interests of his 
flag. The accused is shown to have been, with his command, in the presence 
of the enemy, from the beginning to the end of the baitle of the 29th — a period 
of at least seven and a half, or eight hours. His troops were tresli and well 
equipped ; and that from his position he was bound- to have taken part in the 
engagement, and that his failure to do so, was to the last degree culpable, can- 
not be denied, unless it can be ma-de to appear that he was restrained by some 
uncontrollable physical necessity, or by some positive order of his commanding 
general. The attempt has been made to justify his conduct on both grounds. 
The examination already made of the testimony, warrants the conviction, that 
the material obstacles in his way, growing out of the proximity and strength of 
the enemy, and the nature of the country, were not sufficient to excuse his in- 
action. His chief of staff, however, Lieutenant Colonel Locke, called by the 
defense, deposed that in the afternoon of the 29th, he bore a message from the 
accused to General King, whom he found near Bethlehem Church with General 
McDowell ; that General McDovvell sent back by him to the accused a reply in 
the following words : " Give my compliments to General Porter, and say to him 
that I am going to the right, and will take General King with me. I think he 
(General Porter) had better remain where he is ; but if it is necessary for him 
to fall back, he can do so upon my left ;" and the witness testified that he re- 
garded this as an order, and communicated it to the accused — and this, it is 
insisted, restrained him from attacking the enemy. 

In the first place, it is to be remarked that this language does not import an 
order, but simply a suggestion and counsel from one companion in arms to 
another. Again : General McDowell was not then in a condition to command 
the accused, and this both he and the accused must have well known. They 
were separated from each other, and were not, in the terms of the 62d Article of 
War, "joined or doing duty together." General McDowell was proceeding at 
the moment, with his forces, upon an entirely distiact service from that in which 
the accused was engaged. But the whole of Lieut. Col. Locke's statement in 
regard to this message was swept away by the evidence of Gens. McDowell and 
King. The witness had stated that the message was given to him in the pres- 
ence of Gen. King and was heard by him. General King, however, testified that 
he was not with Gen. McDowell at all after the morning of the 29tb, and that 
he heard no such message ; while Gen. McDowell declared that none such was 
sent by him. It is further urged in the defense, that although the evidence may 
thus fail to show that such a message was sent, yet ihat it was delivered to the 
accused and he was justified in obeying it. This position is assumed in disre- 



27 

gard of the maxim, ^^faTsnm in uno, falsum in omnibus." The same witness 
who deposed to the receipt of the message from Gen. McDowell, deposed to its 
delivery to the accused, and in neither point was he supported by the testimony 
of others. Having been discredited, as laboring under a complete misappre- 
hension, in regard to the first, this discredit necessarily attaches to the second, 
and under the maxim quoted, his entire statement falls to the ground. 

But even if it had been established that this message had been sent and re- 
ceived, and that it was in form an order, and given by proper authority, still it 
is not claimed rhafc it reached the accused before about 3 o'clock. This would 
leave his inaction, from 12 to 3 o'clock, in the presence of the enemy, and in the 
midst of a battle, unexplained, and therefore unpalliated in its culpability by 
anything that is contained in the record. 

Although that portion of the defense which would justify the inaction of the 
accused, because of the enemy and of the dlfficult^nature of the ground in his 
front and to his right, has been commented on, it may not be inappropriate to 
add that history shows these obstacles to be insigniticaut as contrasted with those 
which have been often in great emergencies overcome by military commanders. 
The battle of Hohenlinden furnishes an illustration, and in one respect bears a 
striking analogy, while in another offering a remarkable contrast to the events 
of 29th August. A few extracts from Thiers' History of the Consulate and the 
Empire, vol. 1, pp. 217-18-19, Lippincott & Co.'s edition of 18G1, will suffice to 
show the appositeness of the reference. 

Moreau, wiih 60,000 French troops, was met by an Austrian army 70,000 
strong. "Richepanse and Decaen's divisions," says the historian, " were sent by 
Moreau an order, somewhat vaguely expressed, but positive, to throw them- 
selves from the right hand to the left hand road, to get into the latter, into the 
environs of Maltenboet, and there surprise the Austrian army, entangled in the 
forest. He neither indicated the route to be pursued, nor provided against 
accidents which might occur. He left everything that was to be done to the 
intelligence of Richepanse." " At length, as the battle progressed, a wavering 
was observed in the Austrian troops of the center, which proved to be Richepanse 
falling on their rear." " He had started without waiting for Decaen and 
daringly penetrated into that tract of thickets and ravines, which separated the 
two roads, and marcliing while the fght was going on at Hohenlinden, and 
making incredible efforts to drag with him over that inundated ground six pieces 
of small calibre.''^ " Richepanse reckoning upon Decaen to extricate Drouet's 
brigade, had marched without losing a moment for Maltenboet, for his mi'itary 
instinct told him that was the decisive point. Though he had left but two demi- 
brigades of infantry, the Eighth and Forty-eighth, a single regiment of cax^alry, 
the First Chasseurs, and six pieces of cannon, witli about 6,000 ynen, he had 
continued his march , dragging hi^artiUery by hand, almost always through the 
quagmire.''^ " He then fell to the left and took the bold resolution of falling on 
the Austrian rear, in the defile of the forest." " Marching, sword in hand, 
amidst his grenadiers, he penetrated into the forest, sustained, without flinching, 
a violent discharge of grape shot, then fell in with two Hungarian battalions 
which hastened to bar up his passage. Richepanse would have inspirited his 
brave soldiers with words and gestures, but they had no need of them. " Those 
fellows are our prisoners," cried they ; "let us charge." They charged accord- 



28 

ingly, and completely routed the Hungarian battalions. Presently they came to 
masses of baggage, artillery, infantry, accumulated pell mell at this spot. 
Richepanse struck inexpressible terror into this multitude, and threw it into 
frightful disorder. At the same moment he heard confused shouts at the other- 
extremity of the defile. It was Ney who, advancing from Hohenlinden, had 
penetrated by the head of the defile, and pushed before him the Austrian column^ 
which Richepanse teas driving the other loay, hij attacking it in the rear, " A 
complete rout of the Austrian army ensued. Its loss was some 20,000 men, 
with nearly all its artillery and baggage, and " what, " as the historian observes, 
"was of still greater importance, its moral courage. " " This battle," continues 
M. Thiers, " is the most brilliant that Moreau ever fought, and certainly one of 
the greatest in the present century, which has beheld such extraordinary con- 
flicts. " 

What were the difficulties that appalled the accused on the 29th, as compared 
with those surmounted by Richepanse with but six thousand men? This 
example is an impressive proof of what a general can and will achieve, when 
his heart is in his work, and when he finds himself in the presence of the enemies 
of his country. General McDowell, as a soldier and a commande'", deposed 
that it was the duty of the accused to have attacked the enemy on the 2yth, aud 
it would seem this duty was so mtinifest and so clearly the result of his position, 
that no order to that effect could have added much, if anything, to its force 
and xirgency. What General McDowell prescribed for his associate in arms, he 
unhesitatingly accepted for himself. He had no summons to arouse him and no 
guide to conduct him, but the sound of the cannon, following which, he, with his 
command, found his way to the battle-field, where his instincts as a soldier told 
him both his duty and his honor required him to be. And it is no doubt to his 
timely arrival and aciive participation in the conflict, that we are largely in- 
debted for General Roberts' declaration, that at the close of the day, the ad van- • 
tages were decidedly on the side of the Federal troops. Had the accused, obey- 
ing the same impulse that carried General McDowell up the Sudley Springs 
road, made a movement upon the enemy with the vigor and heroism which the 
occasion demanded, it is altogether probable that the glory of Richepanse would 
have been his, and the fate of the Austrians that of the rebel army. Afier care- 
fully considering all the impediments, which have been so elaborately arrayed 
as in the way of the accused on the night of the 27th, and throughout the day of 
the 29th, we cannot but realize that they shrink away and are scarcely to be 
named beside those obstacles of darkness and tempest, and snow, and morass, 
and Alpine precipices, and frowning batteries, which the warriors of other times 
and lands have unhesitatingly confronted and bravely overcome. 

But there is one feature of the inaction of the accused on the 29th which it is 
especially sorrowful to contemplate. How, unrestrained as he was, and with the 
cannonade of the battle in his ears, and its smoke and the d^ast of the g-athering 
forces before his eyes, he could for seven-and-a-half or eight hours resist the 
temptation to plunge into the combat, it is difficult to conceive. But this alone 
is not the saddest aspect in which his conduct presents itself. This aspect is 
distinctly set forth in the third specification of the second charge. Colonel 
Marshall states that from the cheerings and peculiar yells of the enemy heard 
on the evening of the 29th, he and every man of his command believed that 



29 

General Pope's army was being driven from the field. General Morrell also says 
that from the sound of the artillery, the battle seemed to be receding, which in- 
dicated that it was going against the Federal forces. The accused, in his note 
to Generals McDowell and King, speaking of the enemy, says : " As they ap- 
pear to have driven our forces back, the filing of the enemy having advanced 
and ours retired, I have determined to withdraw to Manassas ;" and in further 
justification of this step, he adds: "They have gathered artillery and cavalry 
and infantry, and the advancing masses of dust show the enemy coming in 
force. " In the afternoon then of the 29th, it is clear that the conviction was enter- 
tained by the accused and his officers that our forces were being driven before the 
enemy — a conviction, which in tones above even the roar of the artillery should 
have appealed to his soldier's heart to rush to the rescue. But heedless of the 
summons, he turned, not towards, but away, from his struggling companions in 
arms, in the direction of Manassas. 

Must we seek an explanation of this want of sympathy with the brave men 
who were doing battle that day in the feelings, as shown by his dispatches, which 
unhappily possessed him in reference to the arify of Virginia and its command- 
ing general? That army, as he seems to have been aware, was sent forth not 
to capture Richmond or to occupy the South, but simply to larrass and brtllle the 
march of the advancing masses ot the enemy, while the army i.l the Putomac 
was being exuicated from the perils that t-urrounded it on the peninsula — a ser- 
vice which should nothava provoked a sneer from the accused. It cannot be im- 
proper to add, what the record will sustain me in saying, that so far as light is 
shed upon the subject by the testimony, the array of Virginia appears to have 
nobly performed the aiduous and perilous work committed to its hands. Its 
campaign was brief, but marked by signal vigor and ability, and animated by a 
spirit which, shrinking from neither toil nor exposure nor danger, bravely struck 
the enemy whenever and wherever he could be found. 

The, accused presents two general grounds of defense, which apply to all the 
accusations against him. They are — first, his general reputation for zeal and 
loyalty; and, secondly, the expression .of satisfaction with his coi duct which 
Genert.1 Pope is alleged to have made at Fairfax Court House on the 2d Sep- 
tetsber. 

In reference to the first, the testimony is full and earnest as to his former ser- 
vices and character for faithfulness and efficiency as an officer. The law admits 
such proof in criminal prosecutions, because a presamption of innocence arises 
from former good conduct, as evidenced by general reputation. The presump- 
tion, however, is held to be entitled to little weight except in doubtful cases. 
Where it comes iuto conflict with evidence that is both positive and reliable, it 
at once gives way. 

In regard to tht second, Colonel Ruggles testified that at the close of a con- 
versation on 2d September, at Fairfax Court House, between General Pope and 
the accused, the general expressed himself satisfied with his conduct, referring, 
as the witness believed, to the transactions on which the present charges are 
based. Colonel Ruggles admits, however, that he was not a party to the con- 
versation ; that he heard it only in scraps, and endeavored not to hear it at all. 
General Pope, on the other hand, deposed that he was not satisfied, and could 
not have been, and that the expression heard by Colonel Ruggles related to ex- 



a'rtifc;" 



30 

planations made by the accused as to certain disparaging telegrams which he 
was understood to have sent to General Burnside. In view of the relation of 
these two oflicers to the conversation, the court, of course, could not hesitate to 
accept the version of General Pope as the true one. Even if General Pope had 
declared himself satisfied, it would not have affected the status of tlae accused 
before the law. His responsibility was to his Government and country, and not 
to the commanding general. Nor can any presumption arise against this pro- 
ceeding from the failure of General Pope to prefer charges against the accused. 
It was his privilege to prefer them, but he was not bound to do so. He 
discharged his whole duty when, in his official report, he laid these transactions 
before his Government for its consideration. 

This case has been most patiently investigated. If, in y/ar, and in the midst 
of active hostilities, any Government has ever devoted so long a period of time — 
some forty-five days — to the examination of a militaxy charge, it has not come 
to my knowledge. The court was not only patient and just, but liberal, and in 
the end, everything was received in evidence, which could possibly tend to place 
the conduct of the accused m its true light. It is not believed that there 
remains upon the record a single ruling of the court to which exception could 
be seriously taken. 

The case is important, not only because of the gravity of the charges and the 
dignity of the officer arraigned, but also because of the fact that it involves a 
principle which lies at the very foundation of all discipline and of all efficiency 
in military operations — the principle of military obedience. A standard author, 
treating on this branch of jurisprudence, says: " Hesitancy in the execution of 
a military order is clearly, under most circumstances, a serious offense, and 
would subject one to severe penalties; but actual disobedience is a crime which 
the law has stigmatized as of the highest degree, and against which is denoun- 
ced the extreme punishment of death." (DeHart, p. 165.) The same author 
continues : "In every case, then, in which an order is not clearly in derogation 
of some right or obligation created by law, the command of a superior must 
meet with unhesitating and instant obedience." So vital to the military system 
is this subordination of will and action deemed, that it is secured by the most 
solemn of human sanctions. Each officer and soldier before entering the 
service, swears that he " will observe and obey the orders of the officers ap- 
pointed over him ;" and it is from this, probably, that the offense of disobedience 
derives much of the depth and darkness of the criminality with which it is 
stamped by the Articles of War. Ofiedience is indeed the very jewel of the 
soldier's life. It adorns him more even than laurels, which are so often plucked 
by unholy hands. The soldier who has given to the order of his superior officer 
a prompt, an earnest, a heartfelt support, has triumphed in the field of duty, 
even though he may have fallen on the field of arms. 

The offenses, for which the pleadings and testimony arraign the accused, are 
the very gravest that a soMier can possibly commit — being neither more nor less 
than the wilful violation of the orders of his commanding general in the midst 
of momentous and perilous military movements, and the shameful abandonment 
of a struggling army which it was his solemn duty to support, in the very presence 
of the enemy, and under the very sound of his artillery. The court was careful 
to give to the accused the benefit of all well-founded doubts that arose in their 



31 

minds, in refer«^nce either to the fact of disobedience, or in reference to the 
measure of criminality that prompted it ; and hence they found him not guilty 
of the fourth and fifth specifiations of first charge ; and in the same spirit, the 
fourth specification of second charge was withdrawn. While, however, the court 
felt that of crimes such as these, no ofiBcer should be convicted but upon the 
clearest and most convincing proof of his guilt, they must also have felt that 
the honor of the profession of arms, and the most enduring ititerests of our 
common Government and country, imperatively demanded that there should be 
no acquittal when that proof had been made. J. Holt, 

Judge Advocate General. 
To THE President. 



LIBRARY OF CONGRESS 




013 705 461 9 









